McCain’s YouTube Takedown Inspires Fair Use Fervor

Wendy Seltzer

There’s nothing like a misfired
copyright claim to make a presidential campaign see the value of fair
use. After finding several of its campaign videos removed from YouTube
for copyright claims, the McCain-Palin campaign has fired off an eloquent defense of fair use — and another illustration of where the DMCA’s counter-notification process falls short.

The McCain campaign complains that its ads and web videos posted to
YouTube have been removed on the complaint of news organizations whose
footage was quoted:

[O]verreaching copyright claims have resulted in the removal of
non-infringing campaign videos from YouTube, thus silencing political
speech. Numerous times during the course of the campaign, our
advertisements or web videos have been the subject of DMCA takedown
notices regarding uses that are clearly privileged under the fair use
doctrine. The uses at issue have been the inclusion of fewer than ten
seconds of footage from news broadcasts in campaign ads or videos, as a
basis for commentary on the issues presented in the news reports, or on
the reports themselves. These are paradigmatic examples of fair use…

Of course the McCain-Palin team could counter-notify, but the DMCA’s
10-14 business day waiting period makes that option next to useless,
when “10 days can be a lifetime in a political campaign.”

The campaign proposes an expedited process for political campaigns. EFF’s Fred von Lohmann calls for a broader solution,
to protect the bottom-up political expression of citizens, not just
those who would be our leaders. We shouldn’t have to battle bogus
copyright claims to debate the debates. And we shouldn’t exempt
politicians from the effects of their laws, so perhaps their copyright
misadventures can give them a bit more sympathy for the rest of us.
Let’s hope this fair use defense lasts longer than a DMCA waiting
period.